The High Court in Kampala has confirmed Associate Professor Patrick Ogwang as the true owner of COVIDEX, the support drug used for treatment of COVID 19.
High Court Judge Musa Ssekaana ruled Friday that the ownership of the COVIDEX support drug isn’t contested since Mbarara University of Technology conceded to having no formula for the innovation.
In 2021, Musa Muhammad Kigongo and Advocate for People, a pressure group sued the National Drugs Authority-NDA and Prof. Ogwang challenging the ownership and the legality of the declaration of COVIDEX, a support drug. At that time, COVID-19 was ravaging the world and in Uganda too.
The applicants argued that it was irrational, legally improper, unjustified and reached without due regard to the law and rules of natural justice for the regulator, National Drug Authority (NDA) to declare COVIDEX as a support drug and allow Prof. Ogwang to produce and distribute the same.
They said the NDA didn’t conduct clinical trials of its own on the drugs before allowing them to be produced for consumption by the general public.
The two who filed the case in public interest further argued that Prof. Ogwang lacked the rights to the drug since the research leading to its production was conducted at Mbarara University of Technology where the professor is employed. They said that Mbarara University of Science and Technology received from World Bank a grant of UGX 283,312,000 million shillings to research on COVIDEX.
“That unless court intervenes, Mbarara University, the government, the tax payers and the public at large are going to lose as private gains from the patent is going to be more prominent than the indebted social good” noted the applicants.
In defence, NDA through the affidavit of the Authority Secretary David Nahamya said that it is not under their mandate to ascertain the intellectual rights of products and also that they are regulators for distribution of drugs.
On his part, Prof. Ogwang said that Covidex was developed at Jena Herbals Uganda Ltd, which is under his leadership as the Director and was never developed at Mbarara University of Science and Technology.
There were two issues for court to determine; whether the application was competent before the court and whether the 1st respondent, NDA properly granted permission to the 2nd respondent who is Prof. Ogwang to produce, sell and distribute COVIDEX drug.
In his ruling, the judge said that for one to institute a case for judicial review, they must show sufficient interest in the application to enable the court assess the level of grievance against what is being challenged and to “sieve out hopeless applications”.
He says that the interest required by law is not a subjective one and that the court is not concerned with the “intensity of the applicant’s feelings of indignation at the alleged illegal action, but with objectively defined interest.”
The judge ruled that the applicants had failed to demonstrate their interest in the matter. The pressure group has its registered objective aligned with human rights and rule of law yet they could not link the application to their objective.
As for the second applicant, Kigongo, the court found that he was a journalist and former Secretary for works and councilor at Bukomasimbi District, descriptions which couldn’t show sufficient interest in the making of the Covidex drug.
“The court is at loss as to what the applicants’ interest was in bringing this matter or whether it was a case of ‘publicity litigation’ to be relevant in the covid-19 pandemic period” ruled the judge.
On the second issues, the judge said that Mbarara University of Science and Technology Council in September 2021 conceded and confirmed that the PHARMBIOTRAC, the University herbal research center, does not possess the formula of the 3 herbal products including Covidex under research and further that it is Jena Herbal (U) Ltd which holds the copyright.
He noted that the committee concluded that Covidex originated from Jena Herbals and it was in existence before the implementation of the research grant between Ministry of Science and Mbarara University of Science and Technology and that many government departments have also accorded Jena Herbals Uganda Ltd national recognition as the inventors and owners of Covidex.
“This settled the dispute as to the ownership of the patent or copyrights in covidex and the applicants would have no basis to re-litigate the same on behalf of Mbarara University of Science and Technology which would have been the body with direct and sufficient interest to challenge the 2nd respondent” reads the judgement in part.
Regarding the argument that the clinical trials on the covidex before authorizing the 2nd respondent to sell, distribute and produce the drug, the judge said the applicants lacked the expertise to challenge the drug making process and subjecting the same to challenge in judicial review procedure.
He referred to them as mere busybodies since the concerns of the first applicant as a public interest pressure group are to do with human rights, constitutionalism, rule of law and governance in Uganda, objective which he says are totally off what they are challenging.
“This may explain why they have mixed up the drug production with human rights and rule of law,” Observed the judge. “It may be deduced from the facts and circumstances that the applicants were ‘hired guns’ to frustrate Prof Patrick Ogwang’s efforts and prominence in the fight against Covid-19 pandemic.”He hence dismissed the case with costs to the respondents.